Clarke 'lowers bar' on terror crime via web, writing, preaching

UK Home Secretary Charles Clarke yesterday announced plans to exclude or deport individuals deemed to have encouraged terrorism via preaching, running web sites or writing articles, and gave further details of plans for new terrorist offences including "indirect incitement" of terrorism, which is likely to cover similar territory.

The widening of Clarke's exclusion powers is aimed largely at moslem figures deemed to be extremist, and Clarke's biggest personal difficulty here is most likely to be in explaining to the popular press why he might not to deporting a specific individual, rather than in justifying action against the ones he does remove. Those subject to exclusion will have no statutory right of appeal, but will be able to challenge decisions by Clarke or immigration officers (who also have these exclusion powers) via judicial review.

Clarke himself will largely be dealing with high profile individuals who are known to be planning to visit the UK or who are already here. For example he named Yusuf Al Qaradawi, whose exclusion has been demanded by numerous politicians and the press, and Sheikh Omar Bakri Mohammed, a founder of the now disbanded al-Muhajiroun group. Clarke also referred to "other individuals whose names are in the public domain." As the Government says it has won the Jordanian Government's agreement not to torture or execute people we send back there, Jordanian citizens (including two subject to control orders, Abu Qatada and Mahmood Abu Rideh) are likely to be early targets. Omar Bakri Mohammed, who is Syrian, may be with us for some time yet, Syria being the place the United States sends Canadian citizens to be tortured, and therefore quite possibly not an entirely safe destination.

Clarke also plans a far wider (and internationalised) application of exclusion at ports of entry, where the immediate decision will be made by immigration officers. These already operate exclusions based on a "warnings list" of individuals, and Clarke intends these powers to be "applied more widely and systematically" via the use of a far more comprehensive database of target individuals.

Clarke will draw up "a list of unacceptable behaviours that fall within [exclusion] powers — for example, preaching, running websites or writing articles that are intended to foment or provoke terrorism", and says this list will be "indicative rather than exhaustive", i.e. people could be added to the list for rather wider reasons. The database of individuals will initially be established by the Home Office, the Foreign & Commonwealth Office and the intelligence agencies, and Clarke says he is "urgently seeking agreement with EU and other countries on the mutual exchange of information on exclusion decisions," so ultimately he envisages an internationally agreed database of undesirables. It's worth noting that such a database would require a very high degree of agreement on what constituted unacceptable conduct, and that the widespread adoption of offences covering "incitement" or "apologie du terrorisme" would almost certainly be a part of this. At the same time, international exchange of information will quite likely lead to people being excluded for conduct that is deemed unacceptable in some other countries, but that is perfectly acceptable in the country they're being excluded from. Which some interior ministries might find handy.

The new offence of indirect incitement, one of three new measures proposed for the UK as part of the Counter-terrorism Bill, is in line with EU plans for the extension of incitement laws, and although Clarke has agreement in principle on the measures from the opposition parties, the wording is likely to be difficult and contentious. The criminalisation of "acts preparatory to terrorism" is arguably catered for in existing legislation (i.e., if police discover that somebody's planning to plant a bomb, they already stop them), as is giving and receiving terrorist training. Clarke says that more legislation is however necessary to "close the gaps to make sure that anyone who gives or receives training in terrorist techniques is covered." The offence of indirect incitement is also an extension of existing legislation in that incitement is already an offence in the UK. "The proposal," says Clarke, "targets those who, although not directly inciting, glorify and condone terrorist acts, knowing full well that the effect on their listeners will be to encourage them to turn to terrorism. So indirect incitement, when it is done with the intention of inciting others to commit acts of terrorism — that is an important qualification — will become a criminal offence." The legislative progress of the "important qualification" is worth keeping an eye on, and we should also watch out that "glorify and condone" does not become glorify or condone.

Clarke did not state yesterday that internet publications would be specifically covered in any or all of these new offences, but it seems likely that the law on indirect incitement will match the terms of the new exclusion policy, and it has been previously suggested that reading terrorist web sites could constitute receiving terrorist training. Use of the internet for research has also already figured in several terror trials, in the UK and in other countries.

Yesterday the Prime Minister's Official spokesman (reported via the excellent and useful Downing Street Says) explicitly linked the legislation with exclusion policy by saying, with reference to people who could not be excluded, that the Government is "lowering the bar of incitement precisely so we could take action against those in that position." It is "a multi-range kit."

The impact of the new offences will depend on how widely the Government draws them, on how broadly it defines "acts preparatory" and receiving training (e.g. reading this explanation of TATP?), and on what it thinks indirect incitement is. Clarke said yesterday that the Tory and Liberal opposition parties had "indicated to me that they were in favour of proceeding straight to introduction, without pre-legislative scrutiny, provided that they could have early sight of the draft legislation and that the normal parliamentary procedures and timetable were followed in both Houses". Clarke has agreed to making early drafts available in September "more widely than simply to the opposition parties."

To some extent the opposition has bought a pig in a poke here. They have agreed in principle that new legislation should be introduced, and expect to have some involvement in the drafting of that legislation. But they don't know for sure what's actually going to be in that legislation, and if it turns out to include a lot of things they don't like, they'll find it difficult to extricate themselves from the deal without being accused of breaking the consensus, playing politics with national security, and being soft on terrorists. If Clarke wants them in a trap, he's got them. ®